The opinion
Revised December 31, 2002
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 01-60537
SIERRA CLUB, CLEAN AIR AND WATER INC; COMMUNITY IN-POWERMENT
DEVELOPMENT ASSOCIATION,
Petitioner,
VERSUS
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; CHRISTINE T.
WHITMAN, ADMINISTRATOR, UNITED STATES ENVIRONMENTAL PROTECTION
AGENCY,
Respondents.
Petition for Review of an Order of the
Environmental Protection Agency
December 11, 2002
Before DeMOSS, STEWART, and DENNIS, Circuit Judges.
DeMOSS, Circuit Judge:
Sierra Club, Inc., Clean Air and Water, Inc., and Community
In-Powerment Association (collectively the "Petitioners"), are
appealing the Environmental Protection Agency's (EPA) final action
at 66 Fed. Reg. 26,914 (May 15, 2001) (codified at 40 C.F.R. pt.
52), which they contend contravenes the Clean Air Act (CAA), 42
U.S.C. §§ 7401-7671q. The final action approved the State
Implementation Plan (SIP) submitted by the State of Texas for the
Beaumont-Port Arthur (Beaumont) area and extended the ozone
attainment deadline for that area. Petitioners also are appealing
the EPA's determination that no additional control measures were
required in the Beaumont area to satisfy the statutory requirement
for implementation of Reasonably Available Control Measures (RACM).
The EPA's final action is AFFIRMED in part, REVERSED in part, and
REMANDED.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Regulatory Background.
The CAA establishes a comprehensive program for improving air
quality throughout the nation. Under the CAA, the EPA is charged
with identifying air pollutants that endanger the public health and
welfare. Id. § 7408. The EPA also is charged with formulating
National Ambient Air Quality Standards (NAAQS), which specify those
pollutants' maximum permissible concentrations in the ambient air.
Id. § 7409. In 1979, the EPA promulgated a one-hour NAAQS for
ozone, which still remains at 0.12 parts per million based on a
one-hour average. See 40 C.F.R. § 50.9.
Under the CAA, states must adopt SIPs specifying emission
limitations applicable to pollution sources in order to maintain
and enforce each NAAQS. 42 U.S.C. § 7410(a). SIPs are submitted
to the EPA, which may approve, conditionally approve, or disapprove
2
the SIPs in full or in part. Id. § 7410(k). Significantly, the
CAA has a provision that requires SIPs to contain provisions
regulating emissions that "contribute significantly to
nonattainment in, or interfere with maintenance by, any other State
with respect to any such national primary or secondary ambient air
quality standard." Id. § 7410(a)(2)(D)(i)(I). In addition, as
noted in the challenged final action, the EPA has interpreted 42
U.S.C. § 7410(a)(2)(A) as incorporating a similar requirement that
an upwind area be prohibited from contributing significantly to
nonattainment in a downwind area within the same state. See 66
Fed. Reg. 26,917.
Under 42 U.S.C. § 7511a, ozone attainment areas are classified
according to the severity of air pollution. The classifications
are: "marginal," "moderate," "serious," "severe," or "extreme."
42 U.S.C. § 7511a(a)-(e). Each classification has a specified date
for attainment of the ozone NAAQS and the programs that States must
adopt in their SIPs to attain the NAAQS by reducing emissions of
volatile organic compounds and nitrogen oxides, which are
precursors to the formation of ozone. Id. §§ 7511, 7511a-7511d.
Under the CAA, the following dates were established for the NAAQS
to be achieved: (1) November 15, 1993, for marginal areas; (2)
November 15, 1996, for moderate areas; (3) November 15, 1999, for
serious areas; (4) November 15, 2005, for severe areas; (5)
3
November 15, 2007, for severe-17 areas;1 and (6) November 15, 2010,
for extreme areas. Id. § 7511(a)(1). Under section 7511(a)(5),
the State may apply for two one-year attainment date extensions
that the EPA can approve if it makes specific determinations
regarding air quality and state compliance with SIP requirements.
In addition, all nonattainment area plans must provide for
implementation of "all reasonably available control measures [RACM]
as expeditiously as practicable." Id. § 7502(c)(1). The EPA must
review each submitted plan. Id. § 7410(k). If the plan is
approved, in whole or in part, the approved provisions become
federally enforceable. Id. §§ 7413, 7604. If the plan is not
approved, or is determined to be incomplete, the State may be
subject to sanctions and eventually federally imposed clean air
measures. Id. §§ 7410(c), 7509.
B. The Extension Policy at Issue in this Case.
On March 25, 1999, the EPA issued a notice of interpretation
of the CAA entitled "Extension of Attainment Dates for Downwind
Transport Areas." 64 Fed. Reg. 14,441 (Mar. 25, 1999). In this
extension policy, the EPA interpreted the CAA as allowing for the
extension of attainment dates for ozone nonattainment areas
classified as either "moderate" or "serious" and that are downwind
1
Notwithstanding table 1 in 42 U.S.C. § 7511(a)(1), severe-17
areas have a 1988 ozone design value between 0.190 and 0.280 ppm,
which provides these areas with a different attainment date than
"severe" areas. See id. § 7511(a)(2).
4
of areas that transport ozone and interfere with their ability to
attain required ozone levels. Id. at 14,441-42. According to the
EPA, it was seeking to "harmonize the attainment demonstration and
attainment date requirements for downwind areas affected by
transport both with the graduated attainment date scheme and the
schedule for achieving reductions in emissions from upwind areas."
Id. at 14,443.
In the extension policy, the EPA explained that an area's
attainment date would be considered for extension if it: (1) has
been identified as a downwind area "affected by transport from
either an upwind area in the same State with a later attainment
date or an upwind area in another State that significantly
contributes to downwind nonattainment"; (2) has submitted an
approvable attainment demonstration with any "necessary, adopted
local measures," which indicates it will attain the one-hour
NAAQS "no later than the date that the reductions are expected from
upwind areas under the final [nitrogen oxides] SIP Call and/or the
statutory attainment date for upwind nonattainment areas"; (3) has
adopted "all applicable local measures required under the area's
current classification and any additional measures necessary to
demonstrate attainment," given that the reductions occurred as
required in upwind areas; and (4) will "implement all adopted
measures as expeditiously as practicable, but no later than the
date by which the upwind reductions needed for attainment will be
5
achieved." Id.
If an area satisfies the above guidelines, it would not be
reclassified or "bumped-up" if it failed to attain by its original
attainment date under section 7511(b)(2). The reasoning for this
is that the EPA concluded that Congress did not intend for downwind
areas to be "penalized by being forced to compensate for
transported pollution by adopting measures that are more costly and
onerous and/or which will become superfluous once upwind areas
reduce their contribution to the pollution problem." Id. at
14,444. Nevertheless, downwind areas are still responsible for
implementing local controls sufficient to bring about attainment,
except for the transported pollution. Id.
C. EPA's Application of the Extension Policy to the Beaumont
Area.
The Beaumont area is classified as a moderate ozone
nonattainment area. See 40 C.F.R. § 81.344. Therefore, under 42
U.S.C. § 7511(a)(1), its original attainment date was November 15,
1996. However, as a result of the pollution traveling from the
upwind area of Houston/Galveston, the EPA applied its extension
policy that resulted in a new attainment date of November 15, 2007,
for the Beaumont area. This date coincides with the
Houston/Galveston area's November 15, 2007, attainment date. 66
Fed. Reg. 26,914. The EPA established the new attainment date for
the Beaumont area after concluding that, based on extensive
modeling submitted by the State of Texas, it will not reach the
6
required attainment level unless the Houston/Galveston area also
attains necessary ozone standards. Id. at 26,915-23. In other
words, requiring local reductions in the Beaumont area earlier than
the Houston/Galveston area's attainment date would not accelerate
attainment in the Beaumont area because of the Houston/Galveston
area's pollution contributions and the need for upwind emissions
reductions.
Petitioners now appeal the EPA's application of the extension
policy to the Beaumont area. Petitioners also appeal the EPA's
determination that 42 U.S.C. § 7502(c)(1) does not compel the
implementation of any additional control measures beyond those
already contained in the Beaumont area's attainment demonstration
SIP.
II. STANDARD OF REVIEW
This Court's role in reviewing the adequacy of the EPA's final
action is governed by the Administrative Procedure Act, 5 U.S.C. §
706. Section 706(2) provides that a reviewing court shall "hold
unlawful and set aside agency action, findings, and conclusions
found to be--(A) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law." See also Texas Office of
Pub. Util. Counsel v. Federal Communications Comm'n, 265 F.3d 313,
320 (5th Cir. 2001); Macktal v. United States Dep't of Labor, 171
F.3d 323, 326 (5th Cir. 1999).
III. DISCUSSION
7
A. Whether the EPA acted consistently with the CAA in granting an
extension of the statutory date for meeting federal standards
for ozone air pollution in the Beaumont area and in approving
a SIP for the area based on that extension.
The EPA argues that it did not abuse its authority by
implementing its extension policy. The EPA asserts that its
interpretation of the CAA is the best way to reconcile the Act's
provisions. According to the EPA, when considering all of the
CAA's pertinent language, Congress clearly did not intend the
unduly restrictive and punitive reading that Petitioners urge on
this Court. The EPA argues that its interpretation of the CAA was
necessary to fill a statutory gap to avoid unfairly burdening
downwind areas by forcing them to adopt more stringent local
controls for the purpose of compensating for another area's
transported pollution.
In support of its argument, the EPA notes that Congress has
provided extensions to transport-affected nonattainment areas such
as in cases of international border areas under section 7509a,
which spares ozone nonattainment areas that demonstrate they suffer
from pollution from “outside of the United States” from being
bumped-up to a higher ozone classification. Under section
7511a(h), the CAA authorizes the EPA to designate certain isolated
ozone nonattainment areas as “rural transport areas,” which allows
them to be subjected to less stringent control requirements. In
addition, 42 U.S.C. § 7511a(j)(2) provides that when a multi-state
nonattainment area fails to demonstrate attainment by the
8
applicable deadline, a State within that area may be relieved of
statutory sanctions if “the State would have been able to make such
demonstration but for the failure of one or more other States”
within the control area. Section 7511(a)(4) of the United States
Code authorizes the adjustment of an area's original classification
based on factors including transported pollution. Furthermore,
under 42 U.S.C. § 7410(a)(2)(D)(i)(I), SIPs must contain adequate
provisions prohibiting pollution that “contribute[s] significantly
to nonattainment in . . . any other State.” And, section 7426
provides States the opportunity to petition the EPA for relief from
interstate pollution.
The EPA concedes that when the 1990 amendments to the CAA were
passed, Congress did not expressly specify similar relief for other
areas, including for downwind cities that are unable to achieve
attainment as a result of upwind cities within the same State. The
EPA, however, maintains that Congress did not fully address all
issues of ozone transport at the time the CAA was amended in 1990
because there was a lack of understanding concerning the issue.
According to the EPA, it was not until the mid-1990s that a
sufficient understanding of the complex ozone transport problem
began to be achieved as a result of the Ozone Transport Assessment
Group (OTAG), an organization with the mission to assess and
recommend strategies to address ozone transport. Thus, the EPA
insists that a reasonable understanding of ozone transport was not
achieved until well after the Beaumont area's 1996 attainment
9
deadline. Ultimately, the EPA asserts that it was reasonable for
it to conclude that the Houston/Galveston area's impact on the
Beaumont area's ability to attain the one-hour ozone standard
indicated that the CAA's transport and attainment provisions did
not function as Congress envisioned.
Petitioners, however, contend the EPA abused its authority by
defeating the express statutory reclassification requirements of
the CAA and extending the ozone attainment deadlines for the
Beaumont area based on pollution transport, and by approving the
SIP as adequate based on the extension. According to Petitioners,
because the Beaumont area failed to achieve attainment of required
ozone levels, it should have been reclassified from “moderate”
(with an attainment date of November 15, 1996) to either “serious”
(with an attainment date of November 15, 1999) or “severe” (with an
attainment date of November 15, 2005). See 42 U.S.C. § 7511a.
Petitioners further maintain that under the CAA, reclassification
would require that an incremental increase in the mandatory control
strategies be imposed on the Beaumont area's SIP in exchange for
any extended attainment date. See 42 U.S.C. §§ 7511a(1)-(d) and
7511(b)(2)(A)).
This Court is guided by Chevron, U.S.A., Inc. v. NRDC, 467
U.S. 837, 842-44 (1984), in evaluating the EPA's interpretation of
the CAA. The first step under Chevron is to inquire whether
Congress “has directly spoken to the precise question at issue.”
10
Id. at 842-43. If Congress has spoken to the issue, this Court
“must give effect to the unambiguously expressed intent of
Congress” and "that is the end of the matter." Id. However, if
the statute is “silent or ambiguous with respect to the specific
issue,” this Court must move to Chevron's second step. Id. at 843.
Under the second step, this Court must defer to the EPA's
interpretation if it is “based on a permissible construction of the
statute.” Id. Furthermore, as this Court has stated, the EPA's
decision will be reversed “only if it was arbitrary, capricious or
manifestly contrary to the statute.” Texas Office of Pub. Util.
Counsel, 265 F.3d at 320 (citing Chevron, 467 U.S. at 844). See
also 5 U.S.C. § 706(2).
Petitioners correctly point out that the Supreme Court has
stated: “[I]t is generally presumed that Congress acts
intentionally and purposely when it includes particular language in
one section of a statute but omits it in another.” City of Chicago
v. Environmental Defense Fund, 511 U.S. 328, 338 (1994) (internal
quotations omitted). Petitioners contend that the CAA's numerous
provisions addressing the issue of pollution transport and
extensions of attainment dates clearly indicates that Congress
fully understood the issue at hand and intended not to authorize
the EPA to extend attainment dates as it did in this case.
Petitioners conclude, therefore, that under step one of Chevron,
the question of whether an attainment date extension is permissible
11
based on air pollution transport has been resolved by the statute
and “that is the end of the matter.” Chevron, 467 U.S. at 842-43.
We agree with the Petitioners. The plain terms of the CAA
preclude an extension of the sort the EPA granted in the present
case. As the Petitioners correctly point out, the CAA specifies
when the EPA may extend attainment deadlines to account for upwind
emissions that jeopardize an area's ability to achieve attainment
without requiring reclassification of the area. For example, the
CAA provides:
any State that establishes to the satisfaction of the
Administrator that . . . such State would have attained
the national ambient air quality standard for ozone by
the applicable attainment date, but for emissions
emanating from outside of the United States, shall not be
subject to the provisions of section 7511(a)(2) or (5) of
this title or section 7511d of this title.
42 U.S.C. § 7509a(b) (emphasis added). Furthermore, the CAA
provides for certain nonattainment areas to be exempted from the
attainment deadlines by authorizing the EPA to designate those
areas as "rural transport areas," which allow those areas to be
treated as "marginal" areas. Id. § 7511a(h). This designation,
however, is limited to a transport-affected area that "does not
include, and is not adjacent to, any part of a Metropolitan
Statistical Area or, where one exists, a Consolidated Metropolitan
Statistical Area," id. § 7511a(h)(1), and whose Oxides of Nitrogen
emissions "do not make a significant contribution to the ozone
concentrations measured in the area or in other areas." Id. §
12
7511a(h)(2). As the D.C. Circuit aptly stated in a recent case
similar to this one: "We cannot but infer from the presence of
these specific exemptions that the absence of any other exemption
for the transport of ozone was deliberate, and the Agency's attempt
to grant such a dispensation is contrary to the intent of
Congress." Sierra Club v. EPA, 294 F.3d 155, 160 (D.C. Cir. 2002).
See also, Sierra Club v. EPA, 2002 WL 31641639, at *6 (7th Cir.,
Nov. 25, 2002).
We note that NRDC, upon which the EPA heavily relies, is
inapposite to the present case. In NRDC, the D.C. Circuit
affirmed the EPA’s grant of two deadline extensions. The first
deadline extension concerned the submission of enhanced Inspection
and Maintenance (I/M) SIPs. NRDC, 22 F.3d at 1135. Under the CAA,
Congress provided that States be given a one-year period after
guidance promulgation to bring their SIPs into compliance with the
enhanced I/M performance standard. Id. However, the EPA failed to
meet its November 15, 1991, deadline for providing guidance, which
"made it impossible for states both to have the benefit of this
lead time and to meet their November 15, 1993, enhanced I/M
submission deadline." Id. The court noted that "[w]hile the CAA
is very specific about the consequences of a state's failure to
meet the submittal deadline, the Act is silent on what should occur
if the agency misses its guidance deadline." Id. Because
Congress' statutory scheme provided that the States "comply in all
13
respects" with the EPA guidance, the court concluded that a
deadline extension was necessary for the States to have a full year
to do so. Id.
The second deadline extension in NRDC concerned the CAA's
requirement that States encompassing nonattainment areas submit
SIPs or SIP revisions addressing the application of Reasonably
Available Control Technology (RACT) to stationary emission sources
of nitrogen oxides by November 15, 1992. Id. However, the EPA
concluded that photochemical grid modeling was "the only reliable
tool to justify an area wide exemption from the [nitrogen oxides]
requirements." Id. at 1136. Moreover, the EPA found that the
modeling "ha[d] not been utilized previously or, if utilized, ha[d]
not adequately considered the effects of [nitrogen oxides]
emissions reductions." Id. As a result, the EPA determined that
"the time needed to establish and implement a modeling protocol and
to interpret the model results will, in a variety of cases, extend
beyond the November 15, 1992 deadline for submission of [nitrogen
oxides] rules." Id. Therefore, the EPA created a narrow one-year
extension for nitrogen oxides RACT submissions limited to
situations in which a State is able to document that "(1) credible
photochemical grid modeling is not available or did not consider
the effects of [nitrogen oxides] reductions and (2) the state
submits progress reports on the modeling showing the program is on
schedule while the committal SIP is being reviewed by EPA." Id.
14
When evaluating the validity of the extension, the D.C.
Circuit noted that the CAA expressly gave the EPA 14 to 18 months
after the submittal deadline to approve or disapprove these SIPs
and to determine whether a State qualified for certain exemptions.
Id. at 1136. The court further noted that only a single nitrogen
oxides RACT submission was required under the CAA and, therefore,
Congress intended all data supporting exemptions to be included
with that submittal. Id. According to the court, after receiving
a submittal, the EPA should then have had the full 14 to 18 months
to review it before making an exemption determination. Id. The
court, however, noted that in many instances the EPA would not be
able to utilize the full statutory review time to make an exemption
determination before the statutory deadline. Therefore, the court
concluded that "had Congress foreseen the exemption timing problem,
a matter outside the EPA's control, it would have elected to accord
the EPA the full statutory review time." Id.
As discussed above, the first extension upheld by the D.C.
Circuit in NRDC was necessary to correct a timing problem created
by the EPA because it did not meet its own guidance deadline. The
second extension was upheld because the EPA would not otherwise
have the full review time in which to make adequate exemption
determinations. Ultimately, this second extension was made
necessary by the EPA's own finding that photochemical grid modeling
was necessary to justify area wide exemptions. Therefore, in both
15
instances, the extensions upheld by the D.C. Circuit were made
necessary by the EPA's own action or inaction, which could not have
been foreseen by Congress when it enacted the 1990 revision of the
CAA. Neither extension, however, had anything to do with a
situation in which a nonattainment area submitted a SIP, had it
approved by the EPA, implemented the SIP, and then failed to meet
its attainment deadline as did the Beaumont area in this case.
B. Whether the EPA reasonably interpreted the CAA as not
requiring any additional RACMs in the Beaumont area’s SIP.
Section 7502(c)(1) of the CAA requires that plans for
nonattainment areas “shall provide for the implementation of all
reasonably available control measures as expeditiously as
practicable . . . and shall provide for attainment of the national
primary ambient air quality standards.” 42 U.S.C. § 7502(c)(1).
Petitioners contend that the EPA arbitrarily and capriciously
rejected a number of control measures that are demonstrably
reasonably available for use in the Beaumont area. As a result,
Petitioners argue that the EPA's final action conflicts with the
plain language of section 7502(c)(1).
Specifically, Petitioners assert that the EPA improperly
limited the menu of RACMs to those that would advance the date of
attainment. Petitioners insist the result of the EPA's action
relegates the CAA's RACM mandate to mere surplusage because
additional control measures that could reduce the frequency and
severity of violations need not be considered. Included in the
16
RACMs that Petitioners claim have been excluded from consideration
are a number of transport control measures (TCM) listed in section
7408(f) of the CAA. In addition, Petitioners contend that the
EPA's determination that potential measures requiring intensive and
costly implementation efforts are not RACMs. Petitioners assert
that such a determination is based on vague and unintelligible
standards and, therefore, is unreasonable.
The EPA acknowledges that additional control measures are
available to the Beaumont area. The EPA, however, contends that
the Beaumont area's attainment demonstration contained all RACMs
required under the CAA. Significantly, the EPA has interpreted
section 7502(c)(1) as imposing a duty to implement only those
control measures that contribute to attainment as expeditiously as
practicable. See; 57 Fed. Reg. 13,498, 13,560 (Apr. 16, 1992)
(citing 44 Fed. Reg. at 20,375).
Furthermore, the EPA notes that it revised its guidelines
concerning TCMs in its General Preamble for Implementation for the
Clean Air Act Amendments of 1990 (Apr. 16, 1992) in which it
concluded that "based on experience with implementing TCMs over the
years, EPA now believes that local circumstances vary to such a
degree from city-to-city that it is inappropriate to presume that
all [section 7408(f)] measures are reasonably available in all
areas." 57 Fed. Reg. at 13,560. The EPA then concluded that only
those TCMs that are determined to be "reasonably available for
17
implementation in the area in light of local circumstances" should
be reviewed by the planning agency. Id.
As noted above, the EPA determined that only those control
measures that contribute to attainment as expeditiously as
practicable are required. This interpretation of the CAA was
applied in a number of final actions before the statute was amended
in 1990. See 53 Fed. Reg. 30,220, 30,222 (Aug. 10, 1988); 53 Fed.
Reg. 30,224, 30,234 (Aug. 10, 1988); 55 Fed. Reg. 40,658, 40,659
(Oct. 4, 1990). When Congress amended the CAA, it moved the RACM
requirement from section 7502(b)(2) to section 7502(c)(1). At the
same time, Congress created a new section to the Act that preserved
all existing EPA guidance issued prior to the amendments. See 42
U.S.C. § 7515. Therefore, we conclude that Congress intended to
preserve the EPA's interpretation of the CAA regarding the RACM
requirement.
Furthermore, there is persuasive authority from the Ninth
Circuit to support the EPA's interpretation of the RACM
requirement. In Ober v. Whitman, the Ninth Circuit upheld the
EPA’s interpretation of the corresponding RACM requirements for
particulate matter (PM-10) governed by section 7513a(a). 243 F.3d
1190 (9th Cir. 2001). There, the plaintiffs challenged the
exemption from control of a variety of sources of particulate
pollution in a Federal Implementation Plan for the Phoenix area.
The Ninth Circuit concluded that the CAA allowed the EPA to
18
make what it called "de minimis" exemptions and that the agency
acted permissibly in designating some pollution sources as de
minimis. Id. at 1198. Notably, the court accepted the EPA's
reasoning in the General Preamble for the Implementation of Title
I of the Clean Air Act Amendments of 1990 that control measures not
aiding in achieving attainment may be excluded from further
consideration because they would not represent RACM for that area.
Id. at 1194-95, 1198. The same reasoning used by the EPA in Ober
also was used here. The EPA concluded that section 7502(c)(1) does
not require the implementation of RACMs that do not aid in
achieving attainment of national clean air standards as
expeditiously as practicable. Implementing such RACMs would be a
pointless expenditure of effort, which courts are reluctant to
require. See, e.g., Alabama Power Co. v. Costle, 636 F.2d 323, 360
(D.C. Cir. 1980).
Similarly, the EPA need not require an analysis of all
transport control measures (TCM) specifically listed in 42 U.S.C.
§ 7408(f). TCMs are measures taken to reduce emissions of ozone
precursors emitted by transportation sources. We conclude that it
would not be possible to assess all available measures and consider
the effects of such measures in every possible combination, as
Petitioners argue is required by the statute. Furthermore, the EPA
has recognized that only some TCMs "will be reasonably available
for implementation in many nonattainment areas." 57 Fed. Reg. at
19
13,560.
Nevertheless, the EPA did conclude that it would be reasonable
to use a midpoint level of program effectiveness to analyze
potential reductions from TCMs, a level that would be economically
feasible and provide effective implementation. See 66 Fed. Reg. at
26,932. Under this program, the EPA’s analysis adequately assessed
all necessary TCMs for effectiveness. The result confirmed that
the TCMs would not produce emission reductions sufficient to
advance attainment in the Beaumont area. Therefore, it appears
that the EPA properly concluded that no additional TCMs were
required because they would not contribute to expeditious
attainment.
Moreover, the EPA properly concluded that potential measures
requiring intensive and costly implementation were not RACMs
because they could not be readily implemented due to excessive
administrative burden or local conditions such as high costs. Id.
at 26,929. Such determinations based on a cost/benefit analysis
are within the EPA’s discretion unless the statutory scheme
precludes such a determination. See, e.g., Michigan v. EPA, 213
F.3d 663, 678-79 (D.C. Cir. 2000); Cf. 42 U.S.C.A. § 7409(b)(1)
(prohibiting a cost/benefit analysis by preventing the EPA from
considering any factor other than health effects relating to
pollutants in the air in establishing NAAQS for ozone and
particulate matter). We find no such limitation in the CAA.
20
Lastly, we note that the D.C. Circuit's decision in Sierra
Club v. EPA also supports our rejection of the Petitioners'
argument that treating as potential RACMs only those measures that
would advance the date at which an area reaches attainment
conflicts with the CAA's text and purpose and lacks any rational
basis. See 294 F.3d at 162. As the D.C. Circuit concluded:
The Act, on its face, neither elaborates upon which
control measures shall be deemed "reasonably available,"
nor compels a state to consider whether any measure is
"reasonably available" without regard to whether it would
expedite attainment in the relevant area. Further, the
EPA reasonably concluded that because the Act "use[s] the
same terminology in conjunction with the RACM
requirement" as it does in requiring timely attainment,
compare 42 U.S.C. § 7502(c)(1) (requiring implementation
of RACM "as expeditiously as practicable but no later
than" the applicable attainment deadline), with id. §
7511(a)(1) (requiring attainment under same constraints),
the RACM requirement is to be understood as a means of
meeting the deadline for attainment, Approval, 66 Fed.
Reg. at 610/2. Because the statutory provision is
ambiguous and the EPA's construction of the term "RACM"
is reasonable, we defer to the Agency. See Chevron, 467
U.S. at 843, 104 S. Ct. at 2781-82.
Id. However, though our opinion defers to the EPA in exempting
certain proposed RACMs from the requirements of the CAA, we must
impress upon the EPA that it has a duty to: (1) demonstrate that
it has examined relevant data, and (2) provide a satisfactory
explanation for its rejection of those proposed RACMs and why they,
individually and in combination, would not advance the Beaumont
area's attainment date. See Ober, 243 F.3d at 1195 (quoting
American Lung Ass'n v. EPA, 134 F.3d 388, 392-93 (D.C. Cir. 1998)
("[U]nless [EPA] describes the standard under which [it] has
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arrived at this conclusion, supported by a plausible explanation,
we have no basis for exercising our responsibility to determine
whether [EPA's] decision is arbitrary, capricious, an abuse of
discretion or otherwise not in accordance with law. . . .")).
CONCLUSION
Accordingly, we REVERSE the portion of the EPA's final action
at 66 Fed. Reg 26,914 (May 15, 2001) granting the Beaumont area an
extension of its attainment date. However, we AFFIRM the portion
of the EPA's final action that treats as potential RACMs only those
measures that would advance the attainment date and considers
implementation costs when rejecting certain control measures. We
REMAND this case to the EPA for proceedings consistent with this
opinion. On REMAND, the EPA must describe the standard under
which it has rejected certain proposed RACMs supported by a
plausible explanation.
AFFIRMED in part, REVERSED in part, and REMANDED.
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